.94
SUPREME COURT.
23rd July.
IN APPELLate JurisdiCTION,
BEFORE SIR JOHN CARRINGTON (CHIEF JUSTICE) AND MR. JUSTICE WISE (PUISNE JUDGE).
THE
"}
"POWAN "." KWANGLEE COLLISION,—
APPEAL DISMISSED. This was an appeal from a judgment given by the Chief Justice on the 5th of May last in a case in which plaintiffs (the China Merchants' Steam Navigation Company) as owners of the steamer Kwanglee, brought an action against the owners of the steamship Powan (the Hong kong, Canton, and Macao Steamboat Company, Limited), claiming damagesson account of a col- lision between the two vessels. Defendants, on the other hand, brought an action against plaintiffs claiming damages in respect of the same colli- sion, defendants on the counter-claim_recover- ing a moiety of the damages sustained by the
Poran.
This decision was appealed against by the owners of the Kwanglee. The Chief Justice, however, remained of opinion that the Kwanglee was also to blame for the collision, adding, "I think this appeal should be dismissed with costs." Mr. Justice Wise concurred.
Mr. Francis, Q.C. (instructed by Mr. H. L. Dennys), appeared for Appellants, and Mr. Pollock, barrister (instructed by Messrs. Deacon and Hastings), for Respondents.
It was decided that the question as to whether the damage to the pier, as well as that to the Kianglee, should be taken into consideration should be argued before the Court on the 11th of August.
THE HONGKONG WEEKLY PRESS AND
costs which is usual in such cases, The present appeal is brought by the owners of the Kwang. lee, who seek to have the judgment of the Court below reversed in so far as it declares that vessel to blame. The owners of the Powan havo not it is res judicata that she is to blame for the appealed against the judgment, and therefore
collision.
The hearing of the appeal commenced on the 13th June last before this Court with the assistance of Lieut. R. Sterling, R.N., Navigating Lieutenant of H.M.S. Bonaven- ture, and Lieut. W. Finch, R.N.R., Master of the 8.8, Gaelic. Unfortunately the hearing occupied a somewhat longer time than was anticipated, and Lieut. Finch was compelled to leave the Colony with his vessel two days before it was concluded, so that the Court has not enjoyed the benefit of his advice on the questions of nautical skill arising for its consideration.
It appears to be desirable that I should first express an opinion on a question which was raised by Mr. Francis in the course of his argument for the Appellants. This question has reference to the manner in which this Court should deal with the judgment of a Judge sitting without a jury. It was urged by Mr. Francis that the correct procedure is for this Court to hear the case de novo, to form its own independent opinion on the facts and circumstances of the case, without regard to the judgment under appeal, and then to apply the opinion so formed to that judgment On the other band Mr. Pollock for the Respondents contended that this Court will be reluctant to interfere with the findings of fact embodied in the judgment of the Court below unless it is satisfied that those findings are wrong. The provisions of the Supreme Court Ordinance, 1873, conferring the right of appeal, do not throw any The Chief Justice said-This is an ap- light on the decision of this question, and, so far peal from a judgment of myself sitting in as I can ascertain, it has not been discussed or the Admiralty Jurisdiction with Comman settled by this Court. In the absence of such der W. C. H. Hastings, Retired R.N., and guidance, it would seem to be expedient for the Commander Arnot Henderson, R.N., as Asses- Court to regulate its procedure on the point in sors. The actions were cross-actions for damages accordance with that which prevails in the like by collision and they were consolidated and case in the Court of Appeal in England and in heard together as one action. The litigation the Judicial Committee of the Privy Council. took place under the following circumstances. The opinions on the point of the Judges in The Appellants, as owners of the steamship these Courts are not altogether in accord with Kwanglee,brought an action against the Respon- one another, but the general result seems to be dents, as owners of the steamship Powan, claim that expressed by the majority of the Court of ing damages on account of a collision between Appeal in The Colonial Securities Trust Com- the two vessels. The Respondents on the other pany, Limited, v. Massey, [1896] 1 Q.B. 38, hand, as owners of the steamship Powan, namely, that where a case tried by a judge with brought an action against the Appellants, as out a jury comes before the Court of Appeal, owners of the steamship Kwanglee, claiming that Court will presume that the decision of damages in respect of the same collision. The the judge on the facts was right, and will not general circumstances relating to the collision disturb it unless the appellant satisfactorily were not in dispute. It appeared that it makes out that it was wrong. See also the re- took place in the harbour of Hongkong on marks of Bramwell, L.J., in Bigsby v. Dickin- the early morning of the 25th January last, son, 4 Ch. D. at p. 30. So in an Admiralty case at a few minutes past one o'clock. At that The Ceto, 14 A.C. at p. 672-Lord Halsbury, time the Kwanglee was moored alongside L.C., began his judgment in the House of Lords the China Merchants' Wharf, which is a with the following words" My Lords, if this wharf belonging to the Appellants. The night were a question of nautical skill or of the was dark but clear. There was a moderate credit due to particular witnesses, I should be wind from the north, and a current setting very reluctant to interfere with a judgment eastward of about a knot. The Powan was arrived at upon the advice of skilled persons, or coming into the harbour from Canton and into differ from a Court which had the advantage endeavouring to get into the southern fairway she struck the Kwanglee some 12 feet from her taff-rail on the starboard quarter; the point of impact as regarded herself being a few feet from her stem on the starboard bow. Considerable damage was done to the Kwanglee by the collision; some plates were broken and others bent, the rudder was broken, the stern post was bent, and other damage was done, including a boat.which was struck by the Powan after she had backed away from the first impact with the Kwanglee and had come forward again. The wharf was also bent out of the straight line for a consider.lision. But there are one or two points to able part of its length and was much damaged. Some of the mooring ropes parted. On her side the Powan also sustained some damage on her star- board bow where she had struck the Kwanglee. Under these circumstances each vessel alleged that the other was solely to blame for the colli- sion. A number of witnesses were called on either side and counsel addressed the Court at much length on behalf of their respective clients. In the result the Court, after considering first the case of the Kwanglee and then that of the Powan, came to the conclusion, on the advice of the Aksessors, that both vessels were to blame for the collision, and made the order as to damages and
This
of hearing and seeing the witnesses whose credit was in question.”
I propose to apply these principles in dealing with the judgment now before the Court. At the same time, remembering that that judgment is my own, I shall endeavour to apply them in a liberal sense.
As I have already said, that part of the judg- ment which finds the Powan to blame is not im peached in this Court, and it is not therefore necessary to consider in detail the evidence relating to her manœuvres previons to the col-
which it is necessary to make reference.
July 30, 1898
of the launch which evidently was referred to, swore that he passed the Powan near Stone- cutters' Island, -some distance away from the entrance to the southern fairway, and that his launch was not present and manoeuvring in Respondents. In giving judgment in the Court the way described by the witnesses for the below I referred to the irreconcileability of these statements, and said that I would not expressly decide which version of the facts I believed, but "would accept, for the purposes of their defence, the statement of the master and the second officer of the Powan that the launch was there and manœuuring in the manner suggested." But, on further considera- tion, I feel that Mr. Francis is right in say. ing that it was the duty of the Court below to express a definite opinion as to the side on which the truth lay in this matter. I have accordingly recalled to my mind the manner in which the witnesses gave their evidence and have also considered tho probabilities of the case in the light of other evidence given and otherwise, and have come to the conclusion that the story told by the master and the second officer of the Powan is to be believed. It follows therefore that, so far as the conduct of the launch avails as a defence to the Powan, that defence is, in my opinion, made out.
In the next place an observation may be made with regard to an argument founded by Mr. Francis upon the opinions of the Nautical Assessors as approved by the Court below on the subject of the manoeuvring of the l'owan. Mr. Francis urged that, if the Powan bad manœuvred in the way suggested by the Assessors instead of in the way which she actually adopted, the collision would not have taken place and that therefore the Kwanglee could not have been blameworthy. This may be so, but it seems to me that the argument involves the mistake of assigning too great an effect to the findings. For in nearly every case of a collision it is pro- bably found that one at least of the vessels in collision has acted in some way different from that which was required by ordinary care and skill, but it would be illogical to hold that, because, if she had acted with such care and skill, the collision would probably have been avoided, therefore the cause is finished and the
conduct of the other vessel. need not be consi-
der It might, I think, be equally well argued that if the Kwanglee had carried or exhibited a light at her stern, the Powan would have seen it in time to avoid a collision, that she would have so avoided it, and that therefore the In the Queen Kwanglee is solely to blame. Victoria, 7 Asp. M.C. (N.S.) 9, Butt, J., al- though holding both the colliding ships to blame, said :-"The Elder Brethren moreover advise me that, having regard to the way in which the Queen Victoria approached her, the Ovington ought certainly to have set her engines astern, and that that in all probability would have avoided this collision."
With respect to the navigation of the Powan it seems to be sufficient to say that the Nautical Assessor in this Court concurs generally in the opinions of the Nautical Assessors in the Court below, as set forth in the judgment under appeal
The position then being that the Powan is to blame for the collision, it is, I think, necessary to consider the conduct of the Kwanglee before deciding the further question as to the degrea in a which the Powan is to blame, that is, whether she is to be held to blame in whole or only in part. It will, then, be desirable to examine carefully the facts relating to the position and circumstances of the Kwanglee immediately prior and at the time of the collision.
As I have already said, the Kwanglee on the night of the collision was moored alongside the Appellants' wharf. It is alleged by the Appel- lants and not denied by the Respondents that In the first place it is clear that the defence she was in the habit of lying alongside that set up by the Powan turned in great measure wharf when in the harbour. The wharf is 293 upon the allegation that, in coming into the feet long, while the vessel is 287 feet long. In southern fairway, she was embarrassed by the consequence, however, of some obstruction on movements of a steam launch which caused that side the Kwanglee could not bring her her to go in nearer to the shore than she stern close to the wall at the landward end of the would otherwise have done. Upon this point wharf, and the result was that her stern pro- there was a conflict of evidence. The projected some 35 feet beyond the seaward end of sence of the launch and the embarrassing | the wharf into the fairway. The width of the. character of its movements
fairway at that point on the night in question was between 300 and 400 feet, that width being measured from the end of the wharf to a line of junks anchored opposite to it and parallel with
were
spoken
to by the master and the second officer of the Powan. On the other hand Police Con- stable Landell, who was in charge on that night
No comments yet.
Private notes are available after approval.